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The State of Bombay Vs. Patel Parshottambhai Desaibhai and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Judge
Reported in(1964)5GLR738
AppellantThe State of Bombay
RespondentPatel Parshottambhai Desaibhai and anr.
Cases ReferredAbdullamiyan Abdul Rehman v. Government of Bombay
Excerpt:
- - he therefore dismissed the suit observing that although the plaintiff had good case on merits his suit should be dismissed as barred under section 11 of the bombay revenue jurisdiction act......defenfdant no. 1. a suit had been filed against the state of bombay for a declaration that the suit property vested in the plaintiff belongs to the plaintiff and also for a declaration that the decision of the prant officer holding that the suit property belonged to the government was incorrect illegal and not binding on the plaintiff the trial court judge held that the property belonged to the plaintiff but he dismissed the suit on the ground that it was barred in view of the provisions of section 11 of the bombay revenue jurisdiction act. he therefore dismissed the suit observing that although the plaintiff had good case on merits his suit should be dismissed as barred under section 11 of the bombay revenue jurisdiction act.2. in appeal the learned district judge at baroda held.....
Judgment:

V.B. Raju, J.

1. This is an appeal against the judgment of the learned District Judge at Baroda. The appellant before me is the State of Bombay (now Gujarat) which was original defenfdant No. 1. A suit had been filed against the State of Bombay for a declaration that the suit property vested in the plaintiff belongs to the plaintiff and also for a declaration that the decision of the Prant Officer holding that the suit property belonged to the Government was incorrect illegal and not binding on the plaintiff The trial Court Judge held that the property belonged to the plaintiff but he dismissed the suit on the ground that it was barred in view of the provisions of Section 11 of the Bombay Revenue Jurisdiction Act. He therefore dismissed the suit observing that although the plaintiff had good case on merits his suit should be dismissed as barred under Section 11 of the Bombay Revenue Jurisdiction Act.

2. In appeal the learned District Judge at Baroda held that the suit would be barred under Section 11 of the Revenue Jurisdiction Act only if the property in respect of which the order related did not vest in the Panchayat. It was conceded before him that the suit should be dismissed if the property did not vest in the dram Panchayat. The learned District Judge therefore remanded the suit to the trial Court to go into the question whether the property vested in the Gram Panchayat or not and he gave a direction that if the property did not vest in the Gram Panchayat the lower Court should dismiss the suit. The State of Gujarat has now come in appeal.

3. Section 37 of the Land Revenue Code provides that all public roads etc. and all lands wherever situated which are not the property of individuals or of aggregates of persons legally capable to hold any property shall be the property of the Crown subject to the rights which any person would establish over the same. Sub-section (1) of Section 37 of the Land Revenue Code therefore declares that all the property which does not belong to any individual or an aggregate of persons belongs to the Crown or to the State and the Collector can dispose of such property in such manner as he deems fit. Sub-section (2) of Section 37 of the said Act provides that if any property or any right in or over any property is claimed by or on behalf of the Crown or by any person as against the Crown it shall be lawful for the Collector or a survey officer after formal inquiry of which due notice has been given to pass an order deciding the claim. Sub-section (3) of Section 37 of the Land Revenue Code provides as follows:

Any suit instituted in any Civil Court after the expiration of one year from the date of any order passed under Section (1) or Sub-section (2) or if one or more appeals have been made against such order within the period of limitation then from the date of any order passed by the final appellate authority as determined according to Section 204 shall be dismissed (although limitation has not been set up as a defence) if the suit is brought to set aside such order or if the relief claimed is inconsistent with such order provided that in the case of an order Sub-section (2) the plaintiff has due notice of such order'. Sub-section (4) of Section 37 of the said Act provides as follows:

Any person shall be deemed to have had due notice of an inquiry or order under this section if notice thereof has been given in accordance with rules made in this behalf by the Provincial Government.

Section 11 of the Bombay Revenue Jurisdiction Act reads as follows:

No Civil Court shall entertain any suit against the Government on account of any act or omissiOn of any Revenue Officer unless the plaintiff first proves that previously to bringing his suit he has presented all such appeals allowed by the law for the time being in force as within the period of limitation allowed for bringing such suit it was possible to present.

4. The suit in the instant case is a suit for two reliefs namely (1) for a declaration that the plaintiff is the owner of the suit property and (2) for setting aside the order of the Revenue Officer passed under Section 37(2) of the Land Revenue Code. In a suit for two reliefs even if one of the reliefs is not granted in view of Section II of the Bombay Revenue Jurisdiction Act the whole suit should not be dismissed provided the suit for the other relief does not come within the application of Section II of the Revenue Jurisdiction Act. A suit for a declaration that the plaintiff is the owner of the suit property is not a suit to which Section II of the Bombay Revenue Jurisdiction Act applies. If the plaintiff is entitled to such a declaration the order passed by the revenue officer would be a nullity because under Section 37 Land Revenue Code an order can be passed by the revenue officer only if the property does not belong to any individual or any group of persons. If the order is nullity it is not necessary for the plaintiff to file a suit to have the order set aside. The view taken by the-trial Court regarding the maintainability of the suit is therefore wrong. The view taken by the learned District Judge in appeal is also incorrect because there is no question whether the property belongs to the Gram Panchayat or not. The only question before the Civil Court is whether the plaintiff proves that the property belongs to him. The question whether the property belongs to the Gram Panchayat is not for decision. The learned District Judge was therefore wrong in remanding the suit to the trial Court to decide the question whether the property vested in the Gram Panchayat or not.

5. A suit for a declaration of the ownership of the plaintiff of a property in respect of which an order is passed under Section 37 of the Land Revenue Code should not be barred by limitation as provided in Sub-section (3) of Section 3 of the said Act because even a suit for a declaration would be inconsistent with the order passed by the revenue officer and therefore Sub-section (3) of Section 37 of the Land Revenue Code would apply. The suit must be filed within one year of the date of the order of the revenue officer. But the expression the date of the order should be interpreted as the date of service of the order on the plaintiff because otherwise the revenue officer may pass an order on the 1st January and communicate it only on the 1 st January next year. Sub-section (4) of Section 37 of the Land Revenue Code therefore provides as under:

Any person shall be deemed to have had due notice of an inquiry or order under this section if notice thereof has been given in accordance with rules made in this behalf by the Provincial Government.

In this case the plaint contains an allegation that the order of the Revenue Officer was served on 31-10-54. This Court cannot decide whether this allegation of fact is specifically traversed or not because the written statement is not before the Court. If this allegation is not specifically traversed in the written statement of the defendant then the fact will be deemed to have been proved and it will not be open to the State to now traverse the allegation at this stage.

6. The learned Assistant Government Pleader for the State has relied on Secretary of State for India v. Husenabu Daudbhai 33 Bom. L.R. 361. The view taken in that case does not in any way conflict with the view taken by me. The Learned Counsel for the State also relies on two decisions namely (1) Malkajappa v. The Secretary of State for India I.L.R. 36 Bombay 325 and (2) Abdullamiyan Abdul Rehman v. Government of Bombay 44 Bom. L.R. 577. The view taken in those cases is the same as the view taken by me.

7. It is contended that the limitation under Sub-section (3) of Section 37 of the Land Revenue Code would not apply to the suit of the plaintiff but Article 120 of the first schedule to the Limitation Act would apply. This contention is rejected because it is provided in Sub-section (3) of Section 37 of the Land Revenue Code that that section would apply even to suits in which the relief claimed is inconsistent with the order passed by the Revenue Officer. As the suit for a declaration of the ownership of the plaintiff in respect of the suit property would be inconsistent with the order of the Revenue Officer holding that the suit property belongs to the appellant Sub-section (3) of Section 37 of the Land Revenue Code applies and Article 120 of the 1st schedule to the Limitation Act does not apply. The order of the learned District Judge is therefore sot aside and the matter is sent back to him. He is directed to see the record and decide whether the allegation of fact regarding date of service of the order is specifically traversed or not. If that allegation of fact is not traversed it would be deemed to have been admitted. If it has been traversed then the learned District Judge will go into the question of merits and decide in the trial Court that the plaintiff has proved the ownership of the property in question. The learned District Judge should decide both these points.


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